Justice Kavanaugh's concurrence in Trump v. CASA is one of his most significant opinions to date. It ranks up there with his concurrence in Labrador v. Poe and his dissent in Calvary Chapel. In CASA, Justice Kavanaugh sketches how he views the role of the Court with regard to the "interim before the interim." Here, Kavanaugh develops ideas that were not present in the briefing, but instead seem novel enough. That's not to say I agree with everything Kavanaugh wrote. I don't, as I'll note before. But this opinion reflects significant original thought. Indeed, I thought Kavanaugh was the most prepared justice during the CASA oral argument.
At a high level, Justice Kavanaugh wants us to move beyond the abstraction of TROs and the the emergency docket. The reality is that when Presidents take executive actions, district courts will be asked to stop the policy. Kavanaugh labels this immediate period as the "interim before the interim."
The Court's decision today focuses on the "interim before the interim"—the preliminary relief that district courts canaward (and courts of appeals can approve) for the generally weeks-long interim before this Court can assess and settle the matter for the often years-long interim before a final decision on the merits.
